Williams v. Commissioner of Social Security

Filing 25

MEMORANDUM OPINION AND ORDER: The final decision of the Commissioner is REVERSED and the cause is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Bernard M. Jones on 9/1/2016. (dl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
BRAD R. WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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Case No. CIV-15-577-BMJ

MEMORANDUM OPINION AND ORDER
Plaintiff, Brad R. Williams, brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social
Security Administration (Commissioner), denying Plaintiff’s application for supplemental
security income. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the exercise of
jurisdiction over this matter by a United States Magistrate Judge.

The Commissioner has

answered and filed the administrative record (AR) [Doc. No. 13], and both parties have briefed
their respective positions. For the reasons stated below, the Commissioner’s decision is reversed
and remanded for further proceedings consistent with this Memorandum Opinion and Order.
I.

Procedural History
On August 27, 2012, at forty-seven years of age, Plaintiff protectively filed applications

for both disability insurance benefits (DIB) and supplemental security income (SSI) under Titles
II and XVI respectively of the Social Security Act (SSA), alleging a disability onset date of July
28, 2009. See AR 12, 20, 66, 75, 188, 191. The Social Security Administration denied both
applications initially and upon reconsideration. At an administrative hearing held on June 17,
2014, Plaintiff voluntarily withdrew his application for DIB and requested his alleged onset date

be amended to August 27, 2012, the date of his application. AR 41-42. The Administrative Law
Judge (ALJ) issued an unfavorable decision October 31, 2014. AR 12-21. On March 27, 2015,
the Appeals Council denied Plaintiff’s request for review, and the decision of the ALJ became
the final decision of the Commissioner. Plaintiff seeks judicial review of the Commissioner’s
unfavorable decision.
II.

The ALJ’s Decision
The ALJ followed the sequential evaluation process required by agency regulations. See

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); see also 20 C.F.R. § 416.920.
The ALJ first determined Plaintiff had not engaged in substantial gainful activity since August
27, 2012, the amended onset date. AR 14. At step two, the ALJ found Plaintiff has the
following severe impairments: “status post rotator cuff syndrome, status post surgical ankle and
elbow enthesopathies, gouty arthritis, and degenerative disc disease of the lumbar spine.” AR 15
(citing 20 C.F.R. 416.920(c)). At step three, the ALJ concluded Plaintiff’s impairments, whether
considered alone or in combination, do not meet or medically equal the severity of any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, App’x 1 (the
Listings). AR 17. The ALJ then formulated Plaintiff’s residual functional capacity (RFC):
After careful consideration of the entire record, the Administrative Law Judge
finds that the claimant has the residual functional capacity to perform less than the
full range of sedentary work as defined in 20 CFR 416.967(a). He can lift/carry
10 pounds occasionally. He can stand/walk for six hours during an eight-hour day
and sit for six hours during an eight-hour day except that he can sit up to 30
minutes at a time and stand for five minutes at a time, then change position at the
workstation without leaving the workstation. He cannot climb ladders, ropes, or
scaffolds. He cannot kneel, crouch, or crawl. He can occasionally climb stairs,
balance, and stoop. He cannot perform overhead reaching with the right upper
extremity, and he can infrequently perform overhead reaching with the left upper
extremity. He can perform fine fingering and gross manipulation frequently.

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AR 17. At step four, relying on the testimony of a vocational expert (VE), the ALJ found
Plaintiff unable to perform his past relevant work (PRW) as a roughneck/roustabout or delivery
driver. AR 19. At step five, the ALJ again relied on the VE’s testimony and determined
Plaintiff was capable of making a successful adjustment to other jobs that exist in significant
numbers in the national economy, including the representative sedentary, unskilled occupations
of semiconductor bonder, stuffer and final assembler of optical goods.

AR 20-21.

After

concluding, in accordance with Social Security Ruling (SSR) 00-4p, that the VE’s testimony was
consistent with the information contained in the Dictionary of Occupational Titles (DOT), the
ALJ determined Plaintiff has not been disabled within the meaning of the SSA since August 27,
2012. AR 20-21; see SSR 00-4p, 2000 WL 1898704 at *4 (Dec. 4, 2000).
III.

Plaintiff’s Claims
Plaintiff advances two claims of error: (1) the ALJ failed to recognize that Plaintiff “fell

within a borderline age situation,” an error that was not remedied by the Appeals Council’s “post
hoc rationalizations” in its order denying Plaintiff’s request for review; and (2) the ALJ’s RFC
assessment pertaining to Plaintiff’s reaching capacity was legally flawed and not supported by
substantial evidence.
IV.

Standard of Review
“In reviewing the ALJ’s decision, ‘we neither reweigh the evidence nor substitute our

judgment for that of the agency.’” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008)
(citation omitted). Judicial review of the Commissioner’s final decision is limited to determining
whether substantial evidence in the record as a whole supports the factual findings and whether
the ALJ applied the correct legal standards. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir.
2009). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.

It requires more than a scintilla, but less than a

preponderance.’” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation omitted). The
Court must “meticulously examine the record as a whole, including anything that may undercut
or detract from the ALJ’s findings in order to determine if the substantiality test has been met.”
Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citation omitted). “The possibility of
drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency’s findings from being supported by substantial evidence.”

Lax, 489 F.3d at 1084

(citation omitted).
V.

Analysis
A.

Application of the Borderline Age Policy

The ALJ used the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2, (the grids), as a framework for her disability determination. The grids are intended
to help ALJs make uniform, efficient decisions about the types and numbers of jobs existing in
the national economy for certain classes of claimants. Heckler v. Campbell, 461 U.S. 458, 468
(1983). The grids are applicable, however, “only when they describe a claimant’s abilities and
limitations accurately.” Id. 461 U.S. at 462 n. 5; see also Channel v. Heckler, 747 F.2d 577, 579
(10th Cir. 1984). The ALJ stated that if Plaintiff had had the “residual functional capacity to
perform the full range of sedentary work, a finding of ‘not disabled’ would be directed by
Medical-Vocational Rule 201.21.” AR 20. Indeed, Rule 201.21 directs a finding of “not
disabled” for “younger individuals” ages 46-49, with at least a high school education, even if
they are limited to sedentary work and have no transferable job skills. Because Plaintiff could
perform less than the full range of sedentary work, the ALJ could not, and did not, directly apply
Rule 201.21 to reach a finding of “not disabled.”

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But one of the basic premises underlying the grids is that the older a person is, the harder
it will be for him to adapt to a new vocation. Here, the ALJ did not take into account the fact
that Plaintiff would turn fifty-years-old, defined in the grids as a person “closely approaching
advanced age,” (ages 50-59) on December 18, 2014, less than two months after the ALJ’s
unfavorable decision. In such situations, the regulations afford an ALJ some latitude in the
application of the grids and affirmatively state that the Commissioner “will not apply the age
categories mechanically in a borderline situation.” 20 C.F.R. § 416.963(b). “A ‘borderline
situation’ exists when there would be a shift in result caused by the passage of a few days or
months.” Daniels v. Apfel, 154 F.3d 1129, 1133 (10th Cir. 1998) (quoting SSR 82-46c, 1982
WL 31427, at *6) (holding ALJ erred in not addressing the borderline age issue when claimant
was within 65 days short of the next category when ALJ issued the decision); see also Lambert v.
Chater, 96 F.3d 469, 470 (10th Cir. 1996) (claimant seven months short of next category did not
fall within a borderline situation preventing application of the grids). In this case, had Plaintiff
turned fifty before the ALJ rendered her unfavorable decision, Rule 201.14 would have directed
a finding of “disabled.”
Plaintiff raised this issue before the Appeals Council. In denying his request for review,
the Appeals Council stated:
The Council also does not find that there are sufficient vocational adversities to
warrant application of the borderline age policy in this case. The residual
functional capacity is actually for a range of work between sedentary and light
and your vocational profile does not show any additional factors that would
hinder the adaptation to alternate substantial gainful activity.
AR 2.

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The Appeals Council’s comment is not binding on this Court. The Supreme Court has
addressed the issue of when the decision of the Appeals Council becomes the final decision of
the Commissioner:
SSA regulations provide that, “if the Appeals Council grants review of a claim,
then the decision that the Council issues is the Commissioner’s final decision.
But if, as here, the Council denies the request for review, the ALJ’s opinion
becomes the final decision. See 20 CFR §§ 404.900(a)(4)-(5), 404.955, 404.981,
422.210(a) (1999).
Sims v. Apfel, 530 U.S. 103, 106–07 (2000). In Sims, the Court specifically recognized that
regulations governing Title XVI cases regarding this issue are not materially different from those
governing Title II cases and elected to omit the latter citations. Id. at n. 2.
For purposes of this judicial review, the final decision of the Commissioner is embodied
in the ALJ’s disability determination. 20 C.F.R. §416.1481 (decision of administrative law judge
is binding if Appeals Council denies review). On remand, the Commissioner should consider
Plaintiff’s borderline age situation in determining whether Plaintiff is disabled.
B.

The RFC

Plaintiff challenges the ALJ’s RFC determination as legally flawed and unsupported by
substantial evidence. First, Plaintiff contends the ALJ neglected to include a narrative statement
citing specific medical and non-medical evidence and describing how that evidence supports the
conclusions in the RFC. Plaintiff further contends that the ALJ’s finding that Plaintiff could
reach overhead with his left arm “infrequently,” is not supported by substantial evidence in the
record, especially in light of the findings of limited left shoulder mobility by two consultative
examiners, Plaintiff’s testimony, and Dr. Kalen Rogers’ statement that he could not lift his arms
above the horizon. AR 15, 18-19, 43-44, 303, 424, 427.

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The ALJ found Plaintiff could perform “less than a full range of sedentary work.” AR
17. Included in the RFC were limitations on overhead reaching. The ALJ found Plaintiff could
never reach overhead with his right arm and “infrequently” with his left arm. Id. The terms
“frequently,” “occasionally,” and “activity or condition does not exist” are the terms used by the
DOT to quantify the amount of time a worker would be required to perform a particular activity
for a given job. These terms are defined in the DOT. “Occasionally: activity or condition exists
up to 1/3 of the time. Frequently: activity or condition exists from 1/3 to 2/3 of the time.” See
713.687-018 FINAL ASSEMBLER, DICOT 713.687-018. Thus the term “infrequently” is not
meaningful in this context.

All three sedentary jobs identified by the VE require either

occasional or frequent reaching.
Moreover, the ALJ specifically questioned the VE about the impact on the number of
jobs available in the national economy if the hypothetical person could reach in all directions
only “infrequently.” AR 63. The VE replied that a requirement for “infrequent” reaching would
limit the number of available jobs.

She added, “not everything is directly in front of a

hypothetical person performing these tasks.” Id. Despite the VE’s testimony, and the fact that
the ALJ’s RFC included a limitation to “infrequent” overhead reaching with Plaintiff’s left arm,
the ALJ nevertheless found Plaintiff capable of performing the jobs identified by the VE. But
the ALJ’s decision is deficient as a matter of law. Because the ALJ used the undefined term
“infrequent” to describe Plaintiff’s reaching limitation, it is impossible to assess from the
testimony of the VE whether jobs would exist in significant numbers in the local or national
economies.

On remand, the ALJ should use precisely defined terms in her hypothetical

questions to the VE and in her RFC determination.

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VI.

Conclusion
The ALJ erred as a matter of law in failing to consider Plaintiff’s borderline age situation

in applying the Medical-Vocational Guidelines. Additionally, the ALJ’s RFC determination is
based on an imprecise hypothetical question to the VE resulting in a decision that is legally
deficient and not supported by substantial evidence. Accordingly, the Commissioner’s final
decision is reversed, and the cause is remanded for further proceedings consistent with this
Memorandum Opinion.

ENTERED this 1st day of September, 2016.

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